President Barack Obama is seen through the eyepiece of a video camera as he delivers remarks on health care reform at Arcadia University in Glenside, Pa., March 8, 2010. (Official White House Photo by Samantha Appleton)

President Barack Obama is out and abroad stumping like mad for his embattled health insurance “reform” plan, claiming now that his administration will “crack down” on $100 billion in annual “waste and fraud” in the Medicare and Medicaid systems.

This new tough rhetoric is meant to win over some of the conservative opposition that sees all government programs as inherently wasteful, inefficient and corrupt.

But the claim itself is bogus.

The figure comes from a study done annually by the Centers for Medicare and Medicaid Services (CMS), and that study makes it clear that it is not looking at fraud, but at errors. And there are two things that can be said about those errors, most of which appear to involve problems like illegible signatures on doctors’ orders, or lost paperwork needed to document that a treatment being billed for actually happened.

The first point to make here is that such errors are equally prevalent in the private sector, only the chances are that in the private sector, the errors more often lead to shortchanging or denying care to the patient, while in the public sector, they as often lead to somebody or some institution getting paid more than they deserve for treating a patient.

Second, the errors in the Medicare program (there has been no systematic study, according to a spokesman at CMS, of error and fraud in the Medicaid program, much of which is funded and managed by the various states), cut both ways, with some errors leading to an overpayment or a payment for a service that wasn’t actually provided, and some errors leading to an underpayment for a service that was provided. Also not reported at all are errors that led to a person’s being improperly denied care altogether. (The same is true for the Veteran’s Administration, by the way, which is notorious among veterans for improperly denying claims of service-connected disabilities.)

According to the latest CMS report, the error rate for Medicaid parts A and B–the hospital and physician part of the program, was 7.9 percent or approximately $24 billion. Of this, $23 billion was said to involve overpayments, and $1.1 billion was said to involve underpayments. The underpayment figure looks suspicious, because in prior years, when the overpayment figure was roughly $9-$10 billion annually, the underpayments came in at about $1 billion also. It seems unlikely that overpayment errors in 2009 would more than double, while underpayment errors would stay the same.

Nearly all the underpayment errors–$800 million worth in 2009–were for inpatient care. This compared to $6 billion in overpayment errors. In otherwords roughly two out of every 15 errors involved the patient or the patient’s physician or hospital being shorted by Medicare.

CMS claims that the estimated error rate for Medicaid in 2009 was 8.7% for the federal government and 10.5% for the states and counties that administer the program locally. That would be $39 billion of the $98 billion in errors and fraud found in both programs combined for the year by CMS, and cited by President Obama in his “$100 billion in waste and fraud” claim.

But bear in mind that unlike Medicare, Medicaid is a welfare program, which means that the bias is towards denying benefits to applicants, as anyone who has had experience with Medicaid can tell you. Furthermore it is a program administered by both state and federal bureaucrats.

Back in 1977, when I was county government bureau chief for the Los Angeles Daily News, I got an urgent call from my editor, telling me to hop on a story based upon a release by the L.A. County Department of Social Services claiming to have discovered that 5.83 percent of welfare recipients were being overpaid because off errors and fraud, and that a campaign was being implemented to attack the problem, which was costing the county millions of dollars a year. Naturally, the editor saw this as a page one piece, perhaps a banner headline, for the next day’s edition.

I called the head of the Department of Social Services and asked a simple question: What is the error rate in the other direction? What percent of welfare applicants and recipients were being undercompensated because of errors? After a little investigation, she returned and informed me that the underpayment error rate was exactly the same: 5.83%! When I reported this back to the City Desk, there was an audible groan on the phone. The story had lost all importance to the editor. And yet, I thought, wasn’t an underpayment of welfare benefits to a poor family of far greater consequence than an overpayment is to the taxpayers? Getting shorted $100, or even $20, for a family living on, or below, the edge, would be catastrophic.

My guess is that a good study of underpayments and overpayments in the Medicaid program of the federal government and the states would more than likely give the same kind of result: an error rate in terms of underprovision of benefits that is equal to in percent and dollar amount the overpayment of benefits. And in fact, with welfare type programs like Medicare, there is also an unmeasured or unmeasurable problem, which is people who are wrongly denied benefits at all. They aren’t underpaid because they are simply turned away from public assistance for health care when they are actually eligible.

The point here is that if there is an error rate of about 9.5% in Medicaid (I’m averaging the federal and state error rate estimates for 2009), then either half of that $39 billion is probably underpayment errors, or, if they are only counting overpayment errors, there is almost certainly another $39 billion that should have been paid out for care of poor families that was not paid out.

Either way, the president’s incendiary claim that there is $100 billion in waste and fraud in the Medicare and Medicaid program is way off the mark.

If the president were serious about the problem, he would call for an honest investigation to make certain that everyone potentially eligible for medical coverage and assistance in both programs gets the full benefits to which they are entitled, to minimize inadvertent overpayments to providers, and to prosecute to the full extent of the law those who defraud either program.

That would be fine and appropriate. But at the same time, the president is also disingenuous in the extreme when he just attacks fraud and waste in Medicare and Medicaid, as though there is not massive fraud and waste in the private insurance industry and the rest of the medical industry. Indeed, much of the fraud in the Medicare program is in that part of it that is contracted out to the private insurance firms that offer the so-called MediGap insurance policies.

Nearly all the rest of the actual fraud is perpetrated by private physicians, private hospitals and by other medical industry firms and pharmaceutical companies, which submit false invoices and charge for services and goods not delivered. And as CBS’s “60-Minutes” program and other news organizations have reported, there has been little or no effort devoted to prosecution of such fraud, though it totals in the tens of billions of dollars per year.

That’s not a problem with “government-run health care”–a bogeyman that the president regularly pulls out to pillory–but with private healthcare.

The president knows this, but since his whole “reform” proposal is built around the private insurance sector, he’s not going to say that.

Then again, what political strategist guru in the White House came up with the idea that attacking alleged “waste and fraud” in “government health care” would be a good way to win support for Obamacare?

Dave Lindorff is a Philadelphia-based journalist. He is author of Killing Time: An Investigation into the Death Penalty Case of Mumia Abu-Jamal (Common Courage Press, 2003) and The Case for Impeachment (St. Martin’s Press, 2006). His work is available at thiscantbehappening.net

Graham said Sunday that if the White House agrees to try self-professed 9/11 mastermind Khalid Sheikh Mohammed and his co-conspirators in military tribunals, he will help the president get the votes needed to close the Guantánamo Bay prison facilities.

“We would be better off as a nation,” said Graham, “if we could close Gitmo safely and start a new prison that he could use—that the world would see as a better way to do business.” But even with Graham on board, Guantánamo is far from closed.

“I think if we could get Khalid Sheikh Mohammed and the co-conspiracies of 9/11 back in the military commission,” Graham said. He added that “it would go down well with the public.”

“But I am going to need Gen. [David] l Petraeus, Admiral Mullen, people not in public office. I’m going to need people from the Bush administration to try to close Gitmo, to put aside partisanship, rally around this president, stand by his side and say, let’s close Gitmo safely.”

President Obama signed an executive order shortly after he was sworn into office to shut Guantánamo within one year. He failed to meet that deadline.

Graham is not in sync with Republicans on this issue.

“Those who want to waterboard on the right and believe that we should keep Gitmo open forever and use any technique to get information, I think they’re equally off base,” said Graham.

“I’m getting a lot of grief,” Graham told Bob Schieffer, host of CBS News’ “Face the Nation,” “because I do believe it’s best to close Gitmo safely.” Republican Sen. Mitch McConnell shot down the idea of closing Guantánamo and moving detainees to a near-vacant maximum-security prison in Thomson, Ill.

“When a foreign national terrorist is captured,” said McConnell, “in the United States like the Christmas bomber, or overseas—he should be sent to Guantánamo, detained there, interrogated there, and the case adjudicated there. They should be treated as military prisoners, not like U.S. citizens.”

Graham’s comments also contrasted fellow Republican Rep. Lamar Smith.  On Friday Smith said, “Guantánamo Bay is best equipped for the detention and prosecution of terrorists, not a prison inside the U.S.”

Since he was sworn in, President Obama was told by his Chief of Staff, Rahm Emanuel, that closing Guantánamo will be impossible without Graham’s support.

Emanuel has been talking to Graham for a while about this issue.  Emanuel favored a military trial for 9/11 detainees and persuaded Holder and Graham, opponents on the issue, to talk.

Emanuel saw Graham as the link to close the much debated prison. “You can’t close Guantánamo without Senator Graham,” he told the New York Times.

If the Obama Administration agrees to the compromise offered by Graham, it would be a complete reversal of the course Attorney General Eric Holder started in November when he announced that the 9/11 trials would be held in a lower Manhattan courthouse in New York City.

Graham told “Face the Nation’s” Schieffer that the ACLU theory was as “equally off base” as the right wing theory.

The ACLU channeled its frustration about the possibility of Obama reversing holding by taking out a full-page ad in Sunday’s of the New York Times that depicted President Obama morphing into former-President George W. Bush. The message was clear: Change or More of the Same?

“Three is the number of people,” said an ACLU statement released Friday, “who have been convicted in the military commissions system. Two of the men convicted in the military commission system are free today.”

A report released by the Justice Department confirmed more than 300 people were prosecuted and convicted for terrorism or terrorism related crimes in civilian courts, a fact the ACLU has been reminding lawmakers and the public about for some time.

“Military commissions are incredibly inept,” said Ben Wizner, an ACLU attorney. “The most basic aspects of trial process were contested down there.  The military commission system is not only unjust, but incapable of handling a complex federal trial like the 9/11 trial.”

“This narrative plays into the hands of terrorists,” said Wizner.

“The biggest supporter in the world of military commissions is KSM,” said Wizner. “If you read his combatant status review transcript from Guantánamo, he is very, very delighted to be treated as an enemy combatant, and to address US military officers as equals. They’re proud to declare that they’re enemy combatants.”

In an apparent policy reversal on Friday, White House officials anonymously suggested that military commissions are under more serious consideration the 9/11 terror trials of Khalid Sheikh Mohammed and four co-conspirators.  But the decision is reportedly still weeks away.

Joshua Durkin is a staff writer for The Public Record based in Connecticut. He can be reached at joshua.durkin@pubrecord.org

Will Dawn Johnsen, President Obama's nominee to head the Justice Department's Office of Legal Counsel, become one of the president's recess appointments?

Answer: They get around the pesky will of the majority of the American people.

Here’s a lovely post from the DailyKos praising the president of the AFL-CIO for encouraging the president of the United States to appoint officials during a recess in order to get around the Senate.

We’ve grown used to hearing “progressives” urge Obama to make laws with signing statements and executive orders. The treaty he’s using to occupy Iraq never went to the Senate for ratification. His list of Americans to assassinate was never authorized by Congress. The Fourth Amendment and habeas corpus are not as dearly treasured as people pretended they were when doing so could make a Republican president look bad. But recess appointments is a new one.

When it comes to unconstitutional senate rules like the filibuster, progressives and the president consider them sacrosanct. It’s far more important not to question a rule that lets senators representing 11 percent of Americans block all legislation than it is to pass any of the horrendously bad bills under consideration. One must uphold the rules, be principled, fight fair with “the other side.” The other side is, of course, one of the two parties, even if both parties are opposing the will of the people.

But when it comes to a president, rather than Congress, rules are for pussies. Democratic party loyalists, just like those on “the other side” have a different attitude toward abuses of power when it is a president abusing power rather than congress. That this results in both “sides” year after year shifting more and more power to presidents is not a concern for either “side”. So, when Bush appointed John Bolton during a recess to get around the Senate, that was a horrible thing to do, not because it set a dangerous precedent (it set a good one apparently) and not because Bolton’s policies would mean massive death and suffering (what does that have to do with winning elections?) but because Bush did it. If Obama had done it (and who at this point would dare assert that Obama won’t appoint Bolton to something?) well, then it would have been fine.

Now, the Senate is an institution that almost always opposes the will of the American people. Appointments are blocked by single senators and other maneuvers that are anti-majoritarian even within the hideously corrupt institution of the Senate. Obama could appoint someone to office that Americans would approve of in a referendum, but that at least a few millionaire rednecks in the Senate would never allow. But the president is already LESS accountable to the American people than are senators. The solution here is to improve the Senate, not worsen the presidency.

Anyone failing to fight for the removal of the filibuster rule can shut up immediately about the will of the majority. If we don’t want individual senators blocking appointments or bills, then change the rules and don’t allow that. If we want Senators to follow the will of the people and overcome the corruption of money, media, and party, then we need to establish clean elections, undo corporate personhood, end the doctrine of bribery as “free speech,” create independent media, and at the very least set an example by not ourselves obeying the antidemocratic orders of party leadership.

We can’t do these things, you say? Then what is the point of having given the Democratic Party what they do not admit they have: complete power?

Recess appointments? Really? This will fix soulless, spineless, sell-outs? And nothing worse will come of it?

If looking to the distant future is too difficult, just ask yourself this: Would you want President Sarah Palin making recess appointments? Proceed accordingly.

David Swanson is co-founder of AfterDowningStreet.org and author of the new book Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union by Seven Stories Press. You can order it and find out when tour will be in your town by visiting davidswanson.org/book.

Deputy National Security Advisor for Homeland Security John Brennan. Photo/Pete Souza

What is to be done about the idiocy that has spread, like a poisonous but imperceptible gas, from the Pentagon to Congress, and is now wafting through the White House, deranging all it touches? As it travels, this dismal infection transforms statistical impossibilities into magic numbers, which appear, to the uninformed observer, to confirm the most shameless lies of former Vice President Dick Cheney: that Guantánamo was teeming with hardcore terrorists, who couldn’t wait to “return to the battlefield.”

Only last month, I tore into the mainstream media for abandoning all its fabled fact-checking and objectivity, when the Pentagon claimed, without producing any evidence whatsoever, that 1 in 5 prisoners freed from Guantánamo had “engaged in terrorist activity after their release,” and these claims were repeated as facts by numerous supposedly reputable media outlets.

As I explained at the time, this was just the latest installment in a campaign of misinformation, which, in May last year, led to humiliation for the New York Times, when its editors allowed a front-page story to run, claiming that 1 in 7 released prisoners (74 in total) had “returned to terrorism,” even though only 27 names were provided, and, of those, independent experts could only verify somewhere between 13 and 20 of them.

Last May, the Pentagon at least provided names, but last month’s fact-free assertions have now found their way to the White House, and were repeated on February 1 by John Brennan, the assistant to President Obama for homeland security and counterterrorism, in a letter to House Leader Nancy Pelosi, which was obtained by ABC News (PDF).

Brennan wrote that:

[T]he Intelligence Community assesses that 20 percent of detainees transferred from Guantánamo are confirmed or suspected of recidivist activity. This includes 9.6 percent of detainees who have been confirmed as having returned to terrorist activities, and 10.4 percent whom the Intelligence Community suspects, but is not certain, may have engaged in recidivist activities.

Brennan attempted to use these spurious figures to score points, asserting that all of the largely unidentified prisoners had been released by the Bush administration. Defending the Obama administration’s careful and thorough interagency review of the remaining prisoners’ cases, he wrote:

I want to underscore the fact that all of these cases relate to detainees released during the previous administration and under the prior detainee review process. The report indicates no confirmed or suspected recidivists among detainees transferred during this Administration, although we recognize the ongoing risk that detainees could engage in such activity.

Despite this, it frankly beggars belief that a spokesman for an administration that has pledged to close Guantánamo would publicly cleave to the kind of wretched propaganda that will make that task all but impossible.

So who are these approximately 116 men (out of the 532 prisoners released from Guantánamo under George W. Bush) who have allegedly “engaged in recidivist activities”?

We know, from earlier Pentagon claims, that this “recidivism” has included — and may well still include — publishing houses, the offices of newspapers, TV studios and film sets, because the Pentagon admitted (in a press release that was subsequently deleted from the Pentagon’s website, but is mirrored here) that it included former prisoners, like the Tipton Three — three young men from the West Midlands — who appeared in a film, “The Road to Guantánamo,” which dramatized their experiences, and the five Uighurs sent to Albania in 2006, after tribunals at Guantánamo cleared them of being “enemy combatants.” In the latter case, this was apparently because one of them, Abu Bakker Qassim, wrote an opinion piece for the New York Times in which he urged US lawmakers to defend habeas corpus.

In the years since, many more ex-prisoners have written books, newspaper articles and op-eds, and have appeared on TV and in films. Perhaps Omar Deghayes, the British resident (released in 2007), who appeared in the Guantánamo documentary that I co-directed, “Outside the Law: Stories from Guantánamo,” has now joined this ever-expanding group of “recidivists” who have dared to use their words and their voices to “attack” the United States for what it did to them in its brutal, experimental prisons in Afghanistan, Guantánamo and elsewhere.

Clearly, however, the main thrust of this propaganda is directed not at these men, but at others — 70, 80, 90 men, perhaps — who have supposedly engaged in terrorism since their release.

Is this plausible? In a word, no.

Even the most rampant apologists for the lawless regime created by George W. Bush, Dick Cheney and Donald Rumsfeld have never realistically tried to claim that more than a dozen or so Saudis slipped through the Saudi government’s rehabilitation program with their burning hatred of America still intact. Moreover, once a handful of other regularly cited names have been dealt with, and it becomes apparent that no “recidivists” have emerged from a vast array of countries — throughout Europe, North Africa and the Gulf — the only conclusion that a logical analyst can reach is that this vast and largely undefined number of “recidivists” must include as many as 1 in 3 of all the Afghans who were ever held.

This, to be honest, is no less preposterous, as only a handful of Taliban commanders (released through the Pentagon’s own ineptitude) were mistakenly freed from Guantánamo, but it at least has the benefit of a certain amount of logic, in that men repatriated to a country still occupied by a foreign army that is as useless at rounding up “terrorists” as it was eight years ago, may find a reason to resist the occupier on their doorstep, even if they have never been near a “battlefield” before.

Even this, however, presupposes that the Pentagon’s “facts” and “suspicions” are remotely accurate, and as researchers — particularly those at the Seton Hall Law School, who have relentlessly analyzed the repeated claims of recidivism — have demonstrated time and again (PDF), the propaganda does not stand up to any form of scrutiny. John Brennan may be at liberty to talk about a few dozen released prisoners who have “engaged in recidivism,” but entertaining the prospect that this figure could be as high as 116 is, to put it frankly, either a dereliction of duty, or a sign that he has fallen under the sway of Dick Cheney’s still malevolent influence.

To understand how easy it is for credulous officials to fall for this propaganda, I’d like to take you back to last month, when Senator Dianne Feinstein, who, laughably, is the head of the Senate Intelligence Committee, falsely claimed on CBS’s “Face the Nation” that “about a third of former inmates at the US naval base who have returned to fight against US interests come from Yemen,” as AFP described it. “If you look at Yemen, and we’re taking a good look at Yemen,” Feinstein said, “what you see is, I think, at least 24 or 28 are confirmed returned to the battlefield in Yemen, and a number are suspected. If you combine the suspected and the confirmed, the number I have is 74 detainees have gone back into the fight, and I think that’s bad.”

It was a poor day for the Senate’s “intelligence” when Feinstein (drawing on the May report) made this ridiculous statement. Its most baleful effect was to add a deceptive veneer of acceptability to the pressure exerted on President Obama to suspend the release of any more cleared Yemeni prisoners at Guantánamo, for one simple reason: only 16 Yemeni prisoners were released from Guantánamo between 2004 and November 2009, and only one of these men allegedly became involved in terrorism.

But in this new world of groundless hysteria, which seems to reveal only how the baleful reach of the Pentagon’s scaremongering has finally engulfed the White House, no one cares that Feinstein couldn’t even get her facts straight.

With John Brennan embracing the lie that 116 of the 532 men released from Guantánamo between 2002 and January 2009 have “engaged in recidivist activities” — and with a compliant and complacent mainstream media happy to regurgitate such rubbish without asking for facts — it may as well be true, as Feinstein claimed, that 28 of the 16 Yemenis returned from Guantánamo have become terrorists.

Once upon a time, we used to pride ourselves on making policy decisions based on facts, rather than on the propaganda that was so prevalent in totalitarian regimes. Now, however, we might as well give up all pretense that this is the case. Just as people were tortured in Guantánamo to produce false confessions that could be used in show trials, like every other totalitarian regime, representatives of the US government now attempt to scare and intimidate the American public with “facts” about “recidivism” that have no basis in reality. In 2010, fear blinds reason, and the truth, it seems, is irrelevant.

This report was originally published on the website of the Future of Freedom Foundation.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

This image of Khalid Sheikh Mohammed was taken in July 2009 under an agreement with Guantanamo prison camp staff that lets Red Cross delegates photograph detainees and send photos to family members.

A bipartisan group of lawmakers introduced legislation Tuesday to prohibit the Department of Justice from prosecuting self-professed 9/11 mastermind Khalid Sheikh Mohammed and four other co-conspirators in federal court.

The bill, sponsored by Sen. Lindsey Graham (R-South Carolina), would restrict the Justice Department from using funds to pay for a trial within the U.S. court system. Graham and other lawmakers in want the alleged 9/11 perpetrators to be tried before controversial military commissions.

Last week, the Obama administration conceded to pressure from Republicans and Democrats and agreed to look for a new venue to hold the trial, which was originally intended to take place in a lower Manhattan.

Graham’s bill currently has 22 co-sponsors.

On Tuesday, Sen. Blanche Lincoln (D-Arkansas), who is facing a tough reelection bid this year, is one of three Democrats who support the measure.

“I have serious concerns about using the U.S. criminal justice system to try enemy combatants who are currently detained at Guantanamo Bay or who might be charged in the future with acts of international terrorism,” Lincoln said in a statement. “My primary concern is providing for the safety and security of our nation and its citizens and I believe conducting military tribunals is the most effective means to accomplish that goal in these cases.

“In my view, their alleged acts against our country warrant trying these individuals in military court.  Trying these conspirators in civilian courts is giving them a public stage to advocate their cause. Carrying out these civilian trials also has the potential to compromise classified intelligence which could put our national security and the American people at great risk.”

The other two Democratic lawmakers who support the bill are Sen. Jim Webb (D-Virginia) and Sen. Mark Pryor (D-Kansas).

This is not the first time Graham has attempted to block the Justice Department from moving forward with its plans to prosecute Mohammed and his accomplices in federal court. Last November, Graham introduced a nearly identical amendment to the Commerce, Justice, Science and Related Agencies Appropriations Act. But the provision was defeated by a vote of 54-45.

The bill he introduced Tuesday features the same co-sponsors that signed onto Senator Graham’s previous bill.

“Despite pressure from Congress and other sources, the Obama administration should stay the course and try the 9/11 suspects in federal courts, where they belong,” said Ben Wizner, staff attorney with the ACLU’s National Security Project. “The administration made the correct decision when it announced that the 9/11 suspects would be brought to justice in our federal courts, and reversing course due to political pressure would be a miscarriage of American justice.”

Graham’s legislation follows a report by the U.S. Justice Department that said in 2009, more defendants charged with terrorism violations were tried in federal court than in any year since 9/11. The report states that there are currently more than 300 international and domestic terrorists incarcerated in U.S. federal prisons.

“Our federal courts are more than capable of handling sensitive security issues while preserving American values and legal standards. On the other hand, even with recent improvements, the military commission system is designed to ensure convictions rather than fair trials, and still fails to ensure basic due process guaranteed by U.S. and international law,” Wizner added.

In a similar pushback against attempts to circumvent federal law in favor of the laws of war when dealing with suspected terrorists, Attorney General Eric Holder sent a lengthy letter to Sen. Mitch McConnell (R-KY) Wednesday stating:

“Since the September 11,2001 attacks, the practice of the U.S. government, followed by prior and current Administrations without a single exception, has been to arrest and detain under federal criminal law all terrorist suspects who are apprehended inside the United States.”

Holder’s letter arrived eight days after McConnell and several other senators sent a letter to Holder demanding to know why Umar Farouk Abdulmutallab was arrested and charged with federal crimes instead of being interrogated by the military.  On Dec. 25, 2009 Abdulmutallab tried to ignite explosives hidden in his underwear Northwest Airlines Flight 253 descended near Detroit.

Graham also criticized the decision to try Abdulmutallab in civilian court, telling reporters that “this whole criminalization of the war is really going to make us weaker and less safe.”

Graham, a former Judge Advocate General, insisted that Abdulmutallab “should have been turned over to the military, questioned about his intelligence, what he knew about the enemy.”

According to Graham, the U.S. would benefit from a system that would allow the military to interrogate a suspect “without a lawyer intervening.”  However, Graham admitted that Abdulmutallab is cooperating with the government and is offering information, but that in this case it is “blind luck.”

In Holder’s letter, he concluded that “removing the highly effective weapon,” the ability to try terrorists in federal court would be foolish.  And “only by using all of our instruments of national power in concert can we be truly effective.”

“The criminal justice system has proven to be one of the most effective weapons available to our government for both incapacitating terrorists and collecting intelligence from them,” Holder wrote.

Joshua Durkin and Ray Stores are staff writers for the The Public Record.

“The transformation of media has not only undermined the imperial institutions of the mainstream media; it has undermined the imperial Presidency,” writes Ken Auletta, a media authority, in the January 25th The New Yorker.

Auletta reminds that six years ago there was no Facebook, no Twitter, no You-Tube and that many regional newspapers and TV stations were “highly profitable.”

Today, he writes, Politico.com Web site has 79 editorial employees to satisfy the news hunger of its 3-million unique monthly visitors and Mike Allen, the online paper’s chief White House correspondent “has become one of Washington’s most influential journalists.” [Allen has been widely criticized by bloggers and other media figures for acting as a "stenographer" for former Vice President Dick Cheney.]

Auletta quotes Anita Dunn, Obama’s former chief communications officer, as saying, “The ability for online to drive stories into the mainstream media is significant.” Once a story gains traction, Dunn says, the Administration must respond quickly or “rumors become facts.”

Obama has 69 press aides to respond to media questions, increasingly from cable news which is growing in influence. Auletta cites a Pew poll last July that found 40 percent of Americans get their national and international news from cable. He writes with the collapse of mass audiences for broadcast television “networks like Fox News and MSNBC have sought niche markets, in the process shedding all but the pretense of impartiality.”

Cable “news” is giving political partisans what they want to hear. For each Democrat who watches Fox News, there are 18 Republicans; for every Republican who watches MSNBC, there are six Democrats.

“Fox News is thriving,” Auletta reports. “Glenn Becks year-old show draws 2.3 million daily viewers, twice its predecessor’s audience.” Fox’s broadcasts attract more nightly viewers than CNN, MSNBC, and CNBC combined, The New Yorker says.

Auletta tells of how the White House unsuccessfully tried diplomacy to soften Fox’s harsh coverage of the Obama presidency. By last September, though, “The White House had given up on changing Fox” and Obama’s aides began attacking it.

Apart from Fox, Auletta reports that no president in modern times has received anything comparable to the adulatory news coverage that characterized Obama’s campaign and early months in office. Time magazine, he says, put Obama on its cover six times in the space of eleven months, in part because “the Obama campaign handled the press adroitly.” And a Center for Media and Public Affairs report found that in Obama’s first 50 days in office he got more than three times the network news coverage of his predecessor.

Auletta makes the point that the emergence of new media is forcing a continuous news cycle, as Internet stories by the volume of their pick-up, push their way into the mass media. Reporters complain they hardly have breathing space to reflect on the meaning of a story but must react swiftly even to just get the headlines to their viewers and readers. “We’re all wire-service reporters now,” Chuck Todd of NBC is quoted as saying.

Todd does anywhere from eight to 16 standup interviews daily for NBC and MSNBC on a patch of White House grass, including feeds to “Today” on NBC and “Morning Joe” on MSNBC. And by nightfall, Todd may have written as many as ten tweets or Facebook postings and five blog entries. With all this sort of deadline busywork, reporters complain they don’t have a minute to do research, call experts, and to put breaking news into context.

While Auletta’s article, “Non-Stop News” concerns itself with new challenges facing the press and the presidency that are driven by new technology, it does not touch on the lack of coverage of critical issues such as the spreading wars of the Middle East. Nor was that the intent of the article. Yet that is the real media crisis today. Thus, Obama’s photogenic daughters are the subjects of saturation media coverage but the smoldering ruins of bombed-out buildings in Afghanistan and Pakistan are not. This lack challenges Auletta’s comment that the transformation of media “has undermined the imperial Presidency.” It has done no such thing.

If an imperial Presidency is defined as one in which an autocratic president can pretty much do as he pleases waging wars around the world, all that a more intensive media environment does is to provide him with heightened supporting coverage. Fox News may attack Obama for his management style but it does not dispute his basic imperialist direction, which is a continuation of the Bush-Cheney wars of aggression. Media dissent these days flickers only on the Internet. Thus the White House succeeds largely in managing the news—especially as it derives so much help from the mainstream media.

Sherwood Ross formerly worked for The Chicago Daily News and other major dailies and as a columnist for wire services. He currently runs a public relations firm for “worthy causes.” You can reach him at sherwoodross10@gmail.com

Pursuant to a settlement reached between the National Security Archive and the White House Executive Office of the President (EOP), the White House today issued a letter describing critical aspects of the EOP unclassified network e-mail preservation and archiving system now used in the White House. Among other specifics, the letter describes:

• Automated capture and preservation of all e-mail and Blackberry messages sent or received on the EOP’s unclassified network;
• Documents segregated into component-specific repositories and broad search capabilities that improve the ability to find e-mail records in response to legal or administrative needs;
• Blocking of access to personal and external Web-based e-mail systems from White House unclassified workstations;
• Controls against unauthorized deletion of e-mails and an accounting of any deleted e-mails;
• Systematic emergency recovery backups of the system; and
• Automatically generated audit reports and system health-check dashboard reports to assist in the identification of problems.

“The system automatically addresses the critical components of capture, backup, and preservation – all of which were missing in the prior system,” explained Al Lakhani, Managing Director at Alvrez & Marsal Dispute Analysis and Forensic Services, who acted as the Archive’s technical expert during the litigation.

Kristen A. Lejnieks, counsel for the Archive from Jones Day commented: “While the Archive continues to urge the White House to upgrade its system by adding new and better protections against unanticipated problems, the system now in place includes controls and automated reporting that will quickly bring unauthorized actions to light for investigation. We can be much more confident than before that, even if an unauthorized deletion of e-mails could take place, it would be detected by a range of people within the EOP.”

“The White House appears to be approaching its record preservation obligations with greater conscientiousness than during the last administration,” stated Meredith Fuchs, the Archive’s General Counsel.

The letter released today was transmitted as agreed under a settlement of two consolidated lawsuits that were separately filed by the National Security Archive and Citizens for Responsibility and Ethics in Washington (CREW) after it was disclosed in April 2007 that the White House had ceased archiving its e-mails in 2003.

President Barack Obama delivers a speech announcing a new strategy for the war in Afghanistan at the U.S. Military Academy at West Point in West Point, N.Y., Dec. 1. Photo/White House photographer Pete Souza

“There isn’t the slightest possibility that the course laid out by Barack Obama in his Dec. 1 speech (at West Point) will halt or even slow the downward spiral toward defeat in Afghanistan,” writes Thomas Johnson in a report published Dec. 10 in Foreign Policy magazine. And for emphasis, he adds the word “None.”

“The U.S. president and his advisors labored for three months and brought forth old wine in bigger bottles,” Johnson wrote, noting, “The speech contained not one single new idea or approach, nor offered any hint of new thinking about a conflict that everyone now agrees the United States is losing.”

Author Johnson is no armchair admiral. He is a professor of national security affairs at the Naval Postgraduate School in Monterey, Calif., a man who has conducted his own on-site investigation in Afghanistan.

Also referring to the President’s West Point address, The Nation magazine editorialized that Obama failed to explain why his goal to “disrupt, dismantle and defeat” Al Qaeda in Afghanistan and Pakistan “requires 100,000 troops at a cost of nearly $100 billion. By the military’s own calculation, there are at most 100 Al Qaeda operatives, mostly low-level, in Afghanistan, the leadership having fled to Pakistan years ago.”

Even as the Afghan war bids to become the longest in U.S. history, “The Nation” adds:

“The undeniable fact is that eight years of US occupation and war have led to a growing insurgency, fueled by anger at one of the world’s most corrupt governments, run mostly by former and not-so-former warlords who were installed by the United States after 9/11. Many of these warlords are deeply involved in the opium trade, among them the brother of Hamid Karzai, the president, who was re-elected only through massive fraud.”

Writing in the Miami Herald of Dec. 20th, Carl Hiaasen says that Johnson believes “Obama knows this war is unwinnable, and that the surge is meant to provide political cover in advance of a full U.S. withdrawal before the 2012 election.”

Hiaasen adds, “Obama wouldn’t be the first U.S. president to let domestic political concerns affect his military moves abroad, but he certainly campaigned as a different kind of leader.”

Does this mean Obama is escalating an unwinnable war for political considerations? Hendrik Hertzberg, writing in the December 14th New Yorker, thinks politics has a lot to do with it. An immediate withdrawal, he writes, would inflict “severe” political and diplomatic damage to Obama and trigger, among other things, “a probable Pentagon revolt.” And the Pentagon has left no doubt about the right course. As General David Petraeus, who commands U.S. Iraq and Afghanistan forces, told The New York Times, “a sustained, substantial commitment” is required.

As the war drags on, the death toll mounts. Writing in the Dec. 21st issue of Foreign Policy, Stephen Walt, professor of international relations at Harvard, says by his conservative count, the war has claimed 30,000 lives. And the CIA’s drone warplane sorties authorized by Obama are boosting that toll.

Obama’s strategy is also spreading the war ever deeper into Pakistan. As Dan Pearson and Kathy Kelly report in the December “Catholic Worker,” 3,000,000 people were uprooted by violence in the Swat Valley and neighboring districts and those who returned found “that their homes, crops and other means of survival had been damaged or destroyed.”

They quote Dr. Aasim Saijad of Lahore University of Management Sciences as saying the attacks in Pakistan are only swelling the Taliban’s ranks. “The hundreds of thousands languishing in refugee camps talk of the mortar shells that have destroyed their homes and killed their relatives,” Saijad said.

“They seethe with anger and warn the government that most Taliban fighters hail from the local population. The longer the war continues—and it has only just begun in this region—the better the chances that the Taliban will be able to recruit from the refugees,” he said.

If Afghans are dying by the thousands and Pakistanis have become refugees by the millions to ensure Obama’s political survival, the U.S. has lost any vestige of moral authority. Is it thinkable to ask what if the purpose of the war is not “victory” but to keep the engines of the military-industrial complex humming? If so, it is not only primitive peoples’ who sacrificed the flower of their youth to ensure a good harvest.

Sherwood Ross formerly worked for The Chicago Daily News and other major dailies and as a columnist for wire services. He currently runs a public relations firm for “worthy causes.” You can reach him at sherwoodross10@gmail.com

Photo/Wikimedia

So much for the First Amendment.

Morris Davis, the retired Air Force Colonel who served as the Chief Prosecutor of the Military Commissions at Guantánamo from September 2005 until his resignation in October 2007, has just lost his job at the Congressional Research Service (a branch of the Library of Congress) for writing, in his personal capacity, an op-ed for the Wall Street Journal, in which he drew on his wealth of experience of the Commissions to criticize the Obama administration for its decision to prosecute some Guantánamo prisoners in federal courts, and others in Military Commissions.

Davis also wrote a letter to the Washington Post, in which he criticized former Attorney General Michael Mukasey for scaremongering about the administration’s decision to try Guantánamo prisoners in federal courts, and he was admonished for that too.

In a letter dated Nov. 20, Daniel P. Mulhollan, the director of CRS, told Col. Davis that he had not shown “awareness that your poor judgment could do serious harm to the trust and confidence Congress reposes in CRS,” and notified him that he would not be kept on after his one-year probationary period at CRS ends on Dec. 21.

The ACLU immediately stepped in, sending a letter on Friday to Dr. Jim Billington, the Librarian of Congress, arguing that “CRS violated the First Amendment when it fired Davis for speaking as a private citizen about matters having nothing to do with his job there, and that CRS must reinstate Davis to his position in order to avoid litigation.”

Aden Fine, staff attorney with the ACLU First Amendment Working Group, said, “The First Amendment protects Col. Davis’s right to speak and write as a private citizen about issues on which he has personal knowledge. Col. Davis didn’t give up his right to express his opinions and first-hand knowledge about a matter of such public importance when he left the military commissions system and went to work at CRS.”

In correspondence over the weekend, Col. Davis reinforced the ACLU’s views, explaining:

I am the head of the Foreign Affairs, Defense, and Trade Division at the Congressional Research Service (one of five CRS research divisions) at the Library of Congress.  My division does not now nor has it ever had responsibility for providing Congress with advice on military commissions; that responsibility resides with the American Law Division … The Library of Congress has a regulation on outside activities for staff and it “encourages” outside writing and speaking on topics outside the staff member’s area of responsibility and the Congressional Research Service has a similar policy … In short, it was clear that I was prohibited from expressing my opinions publicly on matters within my area of responsibility, but I believe I retained the same right as all citizens to express opinions on matter outside the scope of my official duties.

He added:

The First Amendment guarantees the right of free speech and the Supreme Court has long recognized that public employment does not override that right (although regulation of speech is permissible when related to an employee’s official duty … and as noted, I have absolutely no official duty connected to military commissions). It is ironic that our offices are located in the James Madison Building, which is named for the “Father of the Constitution” and the primary architect of the Bill of Rights who led the effort to secure the right of free speech. I suspect Mr. Madison would be surprised to learn that the right he cherished is denied those working in the building that bears his name.

Morris Davis and the ACLU are right, of course, and I hope that Davis is reinstated. Even aside from the fact that he should be entitled to express his personal opinions under his First Amendment rights, it is difficult to see how his published comments could possibly be construed as demonstrating “poor judgment” that “could do serious harm to the trust and confidence Congress reposes in CRS.”

In his Wall Street Journal article on November 10, for example, Col. Davis stated only that the administration’s decision to try some prisoners in federal court and others in Military Commissions was “a mistake.” As he explained, “It will establish a dangerous legal double standard that gives some detainees superior rights and protections, and relegates others to the inferior rights and protections of military commissions. This will only perpetuate the perception that Guantánamo and justice are mutually exclusive.”

And in his letter to the Washington Post, he chided former AG Mukasey for claiming that the decision to try prisoners in federal courts “comes down to a choice between protecting the American people and showcasing American justice,” and also for implying that the Commissions were “essential to keep detainees from returning to terrorism.” As he added, “The Geneva Conventions permit detaining the enemy during armed conflicts to prevent them from causing future harm. Criminal trials punish past misconduct. Suggesting that the choice is either criminal prosecution or freedom is false.”

Ironically (given his subsequent treatment), Col. Davis’s comments about the Commissions were actually rather constructive, as he pointed out that the administration “could legitimately choose to prosecute detainees in either forum — federal courts or military commissions — and satisfy its legal obligations,” noting only that “The problem is trying to have it both ways.” He also explained, “It is not as if double-standard justice is required to keep suspected terrorists off our streets. Those detainees who cannot be prosecuted can still be detained under rules the administration approves — likely in the next several months — for the indefinite detention of those who pose a threat to us during this ongoing armed conflict.”

Jut as ironic is the fact that Davis’s dismissal follows nearly a year at CRS in which he has, in fact, been the soul of discretion regarding his former role as the Chief Prosecutor of the Commissions, the politicization that drove him to resign, and the comments he made in February 2008 that led to the immediate resignation of William J. Haynes II, the Pentagon’s Legal Counsel, even though countless journalists (myself included) would dearly love to talk to him about these matters.

Arguably, no one knew more — or, at least, felt more keenly — the politicization of the Commission process in 2007, after the system was revived by Congress in the fall of 2006 (following a Supreme Court ruling in June 2006, which found that it violated both the Geneva Conventions and the Uniform Code of Military Justice).

Detailed accounts of Davis’ resignation — and his subsequent explanations of his reasons for doing so, which strike at the heart of the Bush administration’s torture regime, and its attempts to prosecute the victims of torture over Davis’s objections — can be found, in particular, in my article, “The Dark Heart of the Guantánamo Trials,” but to conclude this account with a concise explanation, it is worth noting the following passages taken from that article:

[I]n a blistering op-ed in the Los Angeles Times, two months after his resignation, Col. Davis stated, “I was the chief prosecutor for the military commissions at Guantánamo Bay, Cuba, until Oct. 4, the day I concluded that full, fair and open trials were not possible under the current system. I resigned on that day because I felt that the system had become deeply politicized and that I could no longer do my job effectively or responsibly.”

[Col. Davis] explained that the particular trigger for his decision was [a] memo … informing him that he had been placed in a chain of command under Haynes. Stating that he resigned “a few hours after” being informed of this, he mentioned that “Haynes was a controversial nominee for a lifetime appointment to the US 4th Circuit Court of Appeals, but his nomination died in January 2007, in part because of his role in authorizing the use of the aggressive interrogation techniques some call torture.” He added, “I had instructed the prosecutors in September 2005 [shortly after taking the job] that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned.”

In February 2008, Col. Davis told Ross Tuttle of the Nation about a conversation he had with Haynes in August 2005:

“[Haynes] said these trials will be the Nuremberg of our time,” recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.

“I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process,” Davis continued. “At which point, [Haynes's] eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions.’”

This, I’m sure you’ll agree, is far more explosive than Col. Davis’s op-ed and letter regarding the Military Commissions, but even had he chosen to talk about these matters, he should have been free to do so. The fact that he has not is a loss for those of us who wish to see the Bush administration held accountable for its crimes (and who are keen to follow the chain of command from Haynes, via Susan Crawford, the Commissions’ Convening Authority, to Dick Cheney and David Addington), but it also provides another demonstration that, when it came to exercising his freedom of speech whilst employed by the CRS, Col. Davis had no intention of demonstrating “poor judgment” at all.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

But Weiner did not ask Pelosi to include in her bill the Kucinich Amendment to allow states to create single-payer. Pelosi made clear that President Obama opposes that, and used the bogus excuse that providing everyone with comprehensive free healthcare would deprive them of the right to pay ever increasing rates for uncertain health “insurance.”

The removal of the Weiner vote undoubtedly helps the effort to force some of the 57 congress members who wrote to Pelosi in July keep their word. They said they would not support a bill without a public option tied to Medicare rates. If even 40 of them keep their word, the current bill will fail. And we will have a second round, in which we can push for single-payer and achieve at least a better result than the rotten corpse of a bill being voted on this weekend.

If we could have had a second round AND a strong but failing vote for national single-payer, that would have been better. But the single-payer vote was going to be used as cover for voting for a bad bill. Depriving conniving congress critters of that cover is decidedly a good thing, assuming healthcare advocates can come to terms with it and not rip each other’s throats out.

If congress members in favor of real helthcare reform were able to work with each other, or if activists were, other possibilities would open up. And if we have a round 2 in which advocates for a public option admit that single-payer would be better and include single-payer in all of their discussions as the ideal that Americans actually prefer, wonderful things might become possible. But unless single-payer advocates admit that winning in one state would be a good thing, rather than a loss of purity, we may not save any lives. Our most likely path to national single-payer is to get it in a state first.

And we could still facilitate that if we all got together and forced the conference committe to put the Kucinich Amendment back in, or if we forced House members to insist on voting No on Saturday unless the Kucinich Amendment is put back in.

*****

UPDATE: Congressman Henry Waxman has his own twisted logic:

Chairman Waxman’s Statement on Rep. Weiner’s Single-Payer Amendment

WASHINGTON, DC — Today Chairman Henry A. Waxman released the following statement in response to Rep. Anthony Weiner’s decision not to offer a single-payer amendment to the House Democratic health care legislation:

“Rep. Anthony Weiner has been one of the most tireless and effective advocates for health care reform. His decision not to offer his amendment on the floor was a difficult one for him, and for supporters of the measure. I believe Rep. Weiner’s choice will be enormously helpful in passing the health care reform package. His step is a correct and courageous one. I thank Rep. Weiner for it, and look forward to working with him closely. Rep. Weiner deserves a great deal of credit for helping to make quality, affordable health care more available to millions of Americans.”